Ontario farm workers’ legislation constitutional

Compromise denied agricultural workers right to unionize
By Gordon Sova
|labour-reporter.com|Last Updated: 04/29/2011

In a decision that many will find surprising, the Supreme Court of Canada has found that Ontario’s Agricultural Employees Protection Act (AEPA) is constitutional.

Passed in 2002, the Act permits farm workers to join associations, but does not allow them to bargain collectively as members of trade unions. It purports to grant these employees’ associations rights similar to some held but unions, but requires them to appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal, a body that commonly deals with drainage ditches, farm equipment dealerships and marketing boards, rather than to the Labour Relations Board, to protect these rights.

The ruling concentrated on the notion that, while Dunmore and B.C. Medical Services gave employees the right to association, it did not give them the right to a particular style of association. “The affirmation of the right to collective bargaining is not an affirmation of a particular type of collective bargaining, such as the Wagner model which is dominant in Canada.” Thus, to deny farm workers the right to union membership, the Court argued, did not deny them the right of association.

Perhaps in response to arguments made to the Court earlier, the decision stresses that this regime provides “farm workers in Ontario … meaningful processes by which they can pursue workplace goals.” The AEPA gives farm workers the right to make presentations to their employer, but “does not expressly refer to a requirement that the employer consider employee representations in good faith; however, by implication, it includes such a requirement.”

The ruling was not unanimous. While only one judge dissented — Justice Abella — two concurred but argued that the Court should overturn B.C. Medical Services and one concurred but felt the majority had overextended itself by broadening the scope of B.C. Medical Services.

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